plea bargaining sample case: due process Neg

Value: Justice
Inherent in the resolution. (Come up with your own explanation.)

Criterion: Due Process
Since the resolution concerns a formal legal procedure "in the United States," we must consider justice in an American legal framework. "Due process" is the right guaranteed under the 14th amendment to the Constitution, and is the way we best ensure justice has been done. It isn't perfect, but no human system can be. Due process is approaches closest to the asymptote of justice. (If you use that, you'd better quote me.)

C1. Plea bargaining is its own form of due process.
In "Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking," in Law & Society Review, Vol. 30, No. 2. (1996), Debra Emmelman writes,

Viewed as a component of recursive decisionmaking, plea
bargaining can be seen as including multiple episodes of negotiating behavior as well as a wide range of litigation proceedings. Perhaps most important, plea bargaining and trial can actually be seen to converge: not only are plea bargain negotiations "rehearsals of scenes that participants would be willing to portray before a jury" (Maynard 1984b:114), but pretrial and trial proceedings are oftentimes precursors for case settlement.

C2. Plea bargaining restores balance to a process that presumes innocence.
Emmelman again:

It is important to note here McConville's (1986) contention that trials do not guarantee that truth (or perhaps justice) will prevail. Insofar as adversarial procedures do not guarantee that the guilty will be convicted or the innocent set free, and because our judicial system holds that defendants should be given the benefit of doubt (i.e., presumed innocent until proven guilty), it seems this type of plea bargaining system can ensure justice as much or more than trials.

C3. Specifically, plea bargaining in exchange for testimony further expedites due process.
Not only does one defendant admit culpability and face sentencing, but promises to provide testimony to convict another, permitting either the facilitation of a trial or further incentive for the second defendant to enter a guilty plea.

This is a "trial balloon." Your comments and criticism are welcomed.

Update: In order to halt the spread of misinformation, I deleted a couple of my comments that repeated an incorrect statistic. It screws up the comment thread, but you can still get the gist.

plea bargaining sample case: retribution Aff

A sample affirmative shell for the current plea bargaining resolution.

Value Retributive Justice

As Dr. Tom O'Connor writes,

Retribution is a rationale for the existence and limits of law... [It] answers the question "why punish" by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law. Retributivism as a theory of punishment requires retribution as a rationale for law. A retributionist assumes that the law exists for a reason -- a moral reason. All crime, even victimless crime, involves a social harm -- a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Criteria: Retribution must provide proportional punishment and appropriate moral censure.

As Richard Lippke writes in "Retributivism and Plea Bargaining," Criminal Justice Ethics,, New York: Summer 2006,

[L]egal punishment is to be understood as an institutionalized form of censure for conduct that is morally blameworthy. Criminal offenders, on this account, have not simply acted in ways that are socially disapproved of or contrary to their own interests, but have acted in ways that are morally unjustified. Either they have invaded the moral rights of others or have threatened or attempted to do so, or they have violated legal rules the enforcement of which usefully coordinate complex interactions among citizens or allocate access to scarce resources in ways that are fair. Legal punishment censures offenders' conduct by imposing losses or deprivations on them proportional to the seriousness of their offenses.

Contention One: Plea bargaining conflicts with proportionality. Again, from Lippke:

[T]he sentence ranges that retributivism supports are premised on the notion that a given type of crime may produce a range of harms, some of which are considerably worse than others, or exhibit different degrees of offender culpability. Yet negotiated pleas seem unlikely to yield sentences that are related in any very systematic way to such factors. Rather, they are more likely to reflect such things as the defense attorney's skill or experience, whether defendants are free on bail or not, or prosecutors' perceptions of the strength of the case against defendants or the political importance of securing their conviction. However, none of these factors, should, if we are concerned with the harm and culpability of offenses, determine the sentences that convicted offenders receive.

Contention Two: Plea bargaining conflicts with moral censure.

a. Haggling over sentences diminishing the meaning of censure. Lippke:

If one can get a knowledgeable, experienced, or well-connected defense lawyer, one can probably get a better deal.... The legal consequences of crime become a complex game of threats, offers, counteroffers, bluffing, and one-upmanship. In such a process, defendants have an interest in admitting as little guilt as possible. Add to this the fact that many socially deprived defendants will already have an external perspective on the criminal law. They will balk at regarding it as providing legitimate norms for their conduct, viewing it instead as merely presenting obstacles or threats to the satisfaction of their desires.... When such defendants do finally plead guilty before a judge after a deal has been reached with prosecutors, it will seem that they are simply playing their parts in a complicated charade that is encouraged and abetted by the criminal justice system.

b. Defendants should cooperate and take full responsibility, rather than negotiating a lesser charge.

It is no use responding to the preceding concern by arguing that some defendants negotiate pleas because they feel remorse for their crimes and wish to get on with their punishments. First, this will probably be true for only a subset of them. And for those of whom it is true, the obvious thing for them to do is to confess to all of their crimes and throw themselves on the mercy of the court, not negotiate over which ones they will be charged with or what sentences they will receive. A willingness to negotiate, or worse, an insistence that the prosecution negotiate, belies genuine remorse and a desire to embrace one's punishment as deserved.

There's much more that could be said, but this gets the gist across. Proceed to tear it apart, y'all.

throw me the money

In Joanne Jacobs' discussion of the educational failure of a housing voucher program--a lottery for impoverished families that let them move into better neighborhoods--comes this surprise.

Well, what about moving poor kids to better schools?

That's been tried too with no effect on academic achievement. The journal Education Next reports on a study of families who moved out of public housing projects and into better neighborhoods in Boston, Baltimore, Chicago, Los Angeles, and New York: "A randomized evaluation of the 'Moving to Opportunity' (MTO) program—a federal housing program piloted in five major U.S. cities that sought to relocate poor families by providing housing vouchers—shows that, contrary to expectations, moving families out of high-poverty neighborhoods has no overall positive impact on children's learning."

Why might this be the case?

In Baltimore, parents who used vouchers to move often didn't enroll their children in better schools[.] Johns Hopkins researcher Stefanie DeLuca writes, "Many MTO parents told us about frightening conditions in their children's schools and their concern for their children's well-being. Yet these fears and realities did not always translate into efforts to remove their children from these environments. Poor mothers and their children juggle myriad extreme conditions, and schooling is not always on the top of the list."

Educational voucher systems are justified in part by a premise of rational economics: give them the money, and people will make the best choice. But Jacobs' finding refutes that premise. That could explain why straight-up voucher programs have, overall, made little difference.

That doesn't mean schools can't have an impact, though:

In my book, Our School, I describe the struggles and triumphs of a charter high school in San Jose, California, that recruits 'D' and 'F' students, works their butts off and sends all graduates to college. Downtown College Prep succeeds because it targets instruction to struggling students who come from low-income and working-class families; most are the children of poorly educated Mexican immigrant parents.

Jacobs worries that trying to mix in "middle class whites" would "dilute the focus." (So long, Brown v. Board.) Yet for every Downtown College Prep there's a Charter School Fraud, making suckers out of those who need the most help.

It's not the money, really. It's the ethos.

Tolkien inspires true invisibility cloak?

The previous incarnation of an invisibility cloak--to stretch the term--worked only in the microwave spectrum. A new technology using gold rings in the visible spectrum, then, is big news:

The new cloak, which is just 10 micrometres in diameter, guides rays of light around an object inside and releases them on the other side. The light waves appear to have moved in a straight line, so the cloak – and any object inside – appear invisible.

The cloak was built by a team led by Igor Smolyaninov at the University of Maryland, and borrows some ideas from the first theoretical design for an invisibility cloak, published by Vladimir Shalaev from Purdue University, West Lafayette, Indiana, US, earlier this year.

Read the whole thing to see how it's done. Pretty limited, still, but it may mean that truly functional 3D invisiblizing could be mere decades away.

neckwear and life update

"Whatever doesn't kill you--" Nietzche said, just as he was struck by a horse-drawn carriage.

I have fully descended into full National Board madness. It isn't so much the writing for Entry 4--that's coming along sluglike--but everything else on top of it. Debaters are rolling back into practice. A new resolution to think about. Three preps. A school board campaign. Stacks of essays. E-mail newsletters for parents. A band gig coming up in a couple weeks. A staff development to plan for. And a home life, somewhere.

No therapy, yet: just blogging. And ties.

the Superman analysis of the plea bargaining resolution

Let's look at the resolution:

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Essentially, this resolution pits Superman's values against each other. After all, Superman fights for "Truth, Justice, and the Serial Comma American Way."

Truth
Why do we encourage felons to rat on each other? Because we want to know the truth. The truth is our instrument to attain justice, in some cases, or to find closure, in others. Yet this resolution wants us to focus on...

Justice
For reasons expressed elsewhere, plea bargaining in exchange for testimony can advance or hinder the search for justice. It partly becomes a matter of perspective: victims will have quite different justice criteria than the state.

The American Way
The resolution gives us a uniquely American context. As Richard Lippke writes in "Retributivism and Plea Bargaining," in Criminal Justice Ethics, Summer 2006:

Prosecutors in the United States have considerably more discretion in reaching plea bargaining agreements than their counterparts in some European countries. In particular, United States prosecutors can levy or drop charges against defendants with relatively little scrutiny by the courts. This gives them enormous leverage in negotiating pleas, leverage that it seems clear some of them abuse in various ways. Though agreements reached by United States prosecutors might have to be approved by a judge, judicial scrutiny of plea agreements is often perfunctory.

The American context also includes unique legal rights and moral attitudes. If something is unjust "in the United States," it runs contrary to American ideals--but where are those found? In the Constitution alone? In the bulk of federal law? In competing state ordinances? In popular perception? Both sides have a burden to define "justice" so that Superman would find it worth fighting for.*



*(From the Neg's perspective, as long as he's willing to de-prioritize the fight for truth.)

K-Fed up

Because horrible rapping isn't a crime.

things to consider when copping a plea

Via some recent local news regarding the current LD resolution.

1. In many jurisdictions, a judge can ignore your plea, no matter what the prosecutor promised. It's a recommendation, not a biblical injunction.

2. Sometimes you think you're copping a plea, when you're really not. Just ask serial killer Robert Yates.

3. The justice system might look aside, but victims aren't often as forgiving.

injustice and plea bargaining: some potential issues

Essential update: I erred and misrepresented an important statistic in an early comment below. 95% of federal convictions result from a guilty plea. The most recent available statistics come from the Justice Department, and are summarized here.

Regarding the current resolution, what are some ways plea bargaining in exchange for testimony [PBET] could be considered unjust? It depends, of course, on who's defining justice.

1. From a victim's perspective, PBET sets up inequality among victims.
A victim of one crime--theft, for example--is denied justice so that another victim can enjoy satisfaction. Why should my right to justice be denied so that another's may advance?

Neg response: Inequality among victims is inherent, since victims feel differently or are harmed differently by similar crimes. One person cries out for the life of the murderer; the next offers forgiveness. The state cannot let victims' subjective feelings tip the scales of justice.

2. Prosecutors use plea bargains coercively.
By dangling PBET in front of disadvantaged defendants matched with public defenders, prosecutors become the new adjudicators. Around 95% of federal cases end in a plea bargain. To keep the wheels of justice turning, the state values efficacy over justice, speed over due process.

Neg response: Plea bargaining in general may increase aggressive prosecutorial tactics, but PBET is different. Only defendants "in the know" can take this route--and if they're "in the know," chances are, they're guilty of something.

3. PBET rewards "guilty knowledge."
A criminal acting in concert has an extra "out" that a criminal acting alone can't employ, thus creating inequality in punishment. Testimony pleas in the U.S. lead to greater sentence reduction than mere plea bargains.

4. And now for a little dubious math.
On the Neg side, a plea bargain might lead to a utilitarian maximization of justice. With no plea, Defendant A (theft) has a 90% chance of conviction, or .9 Justice Points. With no plea, Defendant B (murder) has a 30% chance of conviction, or .3 Justice Points. Total Justice Points: 1.2

With a plea, though, Defendant A accepts a 30% reduction in sentencing (.7 JP) to inform on B, who now has a 90% chance of conviction. Total Justice Points: 1.6

Justice is easy. You just need the right calculator.

5. Other purported benefits of plea bargaining (in general). From a paper by the Passaic County Prosecutor [Word file]:

The plea provides a means by which the defendant may acknowledge guilt and manifest a willingness to assume responsibility for his or her conduct. Pleas to lesser offenses make possible alternative correctional measures better adapted to achieving the purposes of correctional treatment and often prevent undue harm to the defendant from the form of conviction. Also, pleas make it possible to grant concessions to a defendant who has given or offered cooperation in the prosecution of other offenders.

(The last sentence, of course, merely restates what we already know.)

In the United States, plea bargaining in exchange for testimony is unjust: the November-December Lincoln-Douglas resolution

At long last, the November-December resolution has arrived.

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Analysis, links, observations, rants, discussions, and controversies. This is the first resolution we take into competition, so I'm pretty excited about it. LDers, watch this space--and be sure to join in the conversation. (Update 11/11: here's a place to post arguments you hear in rounds.)

Update 12/1: The January-February nuclear weapons resolution is now available.

Crucial Definitions
This resolution is surprisingly simple. On the aff, define "plea bargaining," explain how the resolution limits it to exchanges for testimony, and define justice, probably as your value. On the neg, I'd imagine most definitions of "plea bargaining" would be fairly non-contentious. "Justice" will be the major sticking point.

Useful Search Terms
plea bargaining
justice
due process
sentencing guidelines
speedy trial
Sixth Amendment
prosecutorial discretion
substantial assistance
downward departure

Potential Values
Aff: Justice. Criteria: due process, right to a fair trial, the rule of law

Neg: Justice. Criteria: retribution, due process, equal treatment under the law, the rule of law.... Hmm... what would Kant say?

Update: I go over some initial reasons plea bargaining in exchange for testimony can be considered unjust. I also point out some things to consider when copping a plea.

Update 10/2: I somehow connect the resolution and Superman. Also, e-note's intro to plea bargaining is a clear and useful explanation. When you're ready, check out the federal sentencing guidelines related to plea bargaining.

Update 10/3: A sample affirmative case--a retribution case--for your critique.

Update 10/4 Now, a sample Neg structure focused on due process.

Update 10/10: Defining justice the professional way.

Update 10/13: Blog neighbor Josh applies Foucault to the resolution. And, for free, a Foucault analysis by Nancy J. Holland in ""Truth as Force": Michel Foucault on Religion, State Power, and the Law," from the Journal of Law and Religion, Vol. 18, No. 1. (2002 - 2003):

In this age of plea bargaining, and the often public displays of remorse it sometimes involves, we can see an intriguing confluence of an earlier (and unfortunately often ritual) insistence on the congruence between human and divine law (to knowingly punish the innocent for any reason remains, in the political ideology of the United States, unthinkable), the incorporation of psychotherapeutic practices (e.g., the cathartic effect of taking responsibility for one's actions) into the legal process, and something very much like exomologesis, both in the role that those harmed by the defendant now play in sentencing procedures and in the almost ritual display of leg irons and chains in some jurisdiction.

In other words, plea bargaining is a form of ritualized confession. Ah, but is it good for the soul?

Update 10/15: A Texas judge offers an insider's perspective on plea bargaining.

Update 10/18: I show an affirmative argument that "pre-turns" an important Neg claim.

Update 10/19: Here's an older post on some issues related to using the criterion in Lincoln-Douglas debate.

Update 10/21: For beginners (or for anyone, really): a handy guide to moral theories [pdf].

Update 10/23: A look at the "McDonaldization" of justice, and the role of plea bargaining in the process, with implications for Aff and Neg.

Update 10/25: A closer look at federal sentencing guidelines, which play an important role in the putative justice or injustice of plea bargaining in the United States. (If you haven't studied up on USSG 5K1, this is a must-read.)

Update 10/28: I note some trends in state court felony conviction rates. I also provide some evidence regarding the morality of plea bargaining.

Update 11/2: Another must-read: crucial statistics on "substantial assistance" pleas, which cover many (if not most) PBET scenarios.

Update 11/6: I show how utilitarianism might work on the Aff.

Update 11/8: What role does discrimination play? I look at some statistics.

Update 11/26: After a holiday hiatus, I'm back with a new criterion for a case: virtue ethics.

Here in the Olympia, much controversy arose when the School Board, in a 3-2 split, adopted the Connected Math Project, or CMP2. (You can read the end of the months-long and exciting exchange in the March 12 minutes [pdf].) Problems with the process drove at least one current school board candidate, Jeff Nejedly, to seek office in the upcoming.

But all our fractiousness over fractions may be for naught, as the Frenchification of Washington's public education gathers speed. The Kitsap Sun reports:

home wreckers: Hawks smash 49ers in San Fran

Picked to lose by ESPN's AccuScore, and victims of two tough 2006 losses, the vengeance-minded Seattle Seahawks brought down wrath upon the 49ers, sending Alex Smith home early in a 23-3 victory. The game shouldn't have been that close: several Seattle drives stalled in the red zone, and the Hawks recovered only two of the Niners' five fumbles. (San Francisco punted 10 times, one shy of the record.)

I love the way ESPN describes the game's fastest drive:

The Seahawks' offense also started slowly, managing only one field goal until Branch ran past $80 million cornerback Nate Clements for a 65-yard catch midway through the second quarter. Engram then caught a 17-yard pass over the middle to complete the two-play, 82-yard TD drive.

It was a thing of beauty. Thankfully, it's archived on the Seahawks' website. Click on September and scroll.

how to teach the WASL

The Science Goddess is sharing her methods for approaching the WASL in the classroom. It's not just for science teachers, either. Check it out.

there will be a quiz

The Associated Press tries to clarify the potential NL tiebreaking scenarios. God forbid a four-way tie:

If Colorado, New York and Philadelphia win Sunday and San Diego loses, all would finish 89-73. New York and Philadelphia would play the NL East tiebreaker Monday; the loser would play a three-team, two-day, wild-card tiebreaker with Colorado and San Diego on Tuesday and Wednesday. In that scenario, Colorado (the team with the best head-to-head record among the three teams in the wild-card tiebreaker) would get the choice of having a bye on Tuesday or playing both games at home.

Oh, and what's sad: the Mariners, 7 back in the AL West, coulda won the NL central.

Update: The Phillies won the NL East. Buh-bye, Mets. The Padres and Rockies will meet in a one-game playoff for the wild card spot.

this week's upset blogging

Update 9/30: And now for the even bigger upset that wasn't: The Dawgs couldn't quite take down #1 USC. That woulda been the day's biggest.


Tulane was tough in the first half, but faded in the second, letting LSU slip away:


At the day's end, I'll add the best upset that's as shocking as an upset that's really shocking. (Ah, Simile School. I am a lifelong student.)

And here it is: Kansas State shocks Texas: with special teams!

a libertarian traffic solution

Want drivers to become more courteous? In a German town, they're removing all street signs, leveling sidewalks, and creating "shared space" for bikers, pedestrians, and drivers, in hopes that folks will slow down and pay attention. KOMO has the video.

You can see the insurance agent / obligatory skeptic at the end thinking, "If this works, we'll have to--choke--lower our rates!"

group therapy for the city council

In Ashland, Oregon, City Council members' open disagreements are more like open sores:

They curse and bicker regularly in public. They disagree on almost everything. But now they've agreed to see a counselor for a second shot at their broken relationship...

Starting next week they'll put their future collaboration in the hands of an Ashland naturopath who counsels corporations and cable news channels on conflict resolution and adapting to change.

Rick Kirschner will lead the council in the first of a five-month series of therapy sessions on Oct. 6, for which the city's taxpayers will pay Kirschner $37,000.

Kirschner has written several books about the art of persuasion and human relationships, including "Dealing With People You Can't Stand - How To Bring Out The Best In People At Their Worst."

The council's cry for help was highlighted once again Tuesday night when Councilman David Chapman told Councilman Eric Navickas to "shut your f——— mouth" during a formal discussion about council rules at a special session.

"I just lost my temper," Chapman said Wednesday. "He's lost his temper with me before. We kind of take turns."

No matter how contentious Olympia's local politics have been, we haven't reached the point where we've had to bring in a therapist.

Not yet, anyway.


[via Obscure Store, where the commentators have other suggestions]

twin camazing

I swear, Officer, I didn't know it was a school zone.

home sweet homecoming: Capital 38, Clover Park 13

Update: Photos added below.

Capital, playing in front of a feisty home crowd, scored early and often, soundly defeating Clover Park in the Cougs' homecoming match, 38-13.

For three quarters Clover Park dogged the Cougs, but couldn't close the gap, eventually falling to Capital's balanced attack. Reid and Riley Wall outran and outzigged the Warrior line, and a charged up defensive unit kept pressure on freshman QB Tana Pritchard, who tossed up two interceptions to his one touchdown.

The Warriors couldn't solve the Wall twins, especially Riley, who scored two touchdowns in the first five minutes. His quick cuts and long runs after the catch took him at least to 175 multipurpose yards [207, says The Olympian]--and he could have gone for more, if not for a couple crucial false starts and holding calls.

Kellen Camus pitched a solid game, going 11 for 18 9 for 17 with two touchdowns and, more important, no interceptions.

Key Plays:

Down 31-7 in the first half, Clover Park punched in a touchdown on a QB keeper with time expiring. After a roughing the kicker penalty, Clover park decided to go for two. They failed.

With 7:33 remaining in the 3rd, the Cougs faced fourth and inches on their own 40. Coach Johnson called a run play, and Michael Peters pounded the ball ahead, sustaining the drive and eating up precious time.

Five minutes later, trailing by 18 on third and long near midfield, a Warrior receiver made a tough catch and appeared to reach the down marker--but then coughed up the football when hit hard from behind. The Cougars recovered, and Clover Park's hopes faded.


The band takes the field.


The band and drill team perform at the half.


The homecoming court limo attempts to run down our mascot.


It was 51 degrees at gametime, and 48 when we left, victorious. Melissa's sporting her new hand-knit scarf, in official Cougar cardinal.


[All stats are unofficial. Stats updated.]

time machine

The photo of yesterday's tacky tie, a repeat from last year, features a screen shot of decorabilia past--including a digital photo from last year's Spirit Week. Sadly, this year's hall decorations lacked verve, although the Simpsons theme was done fairly well.

I don't need a traditional time machine. I need a machine that expands time.